22 September 2010

A Round Tuit (45)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Barnum and Bailey - Greatest Show on Earth

Time was | when their plebiscite elected
Generals, Heads of State, commanders of legions: but now
they've pulled in their horns. Only two things really concern
bread and the Games.

— Juvenal, Satire X: Lines 77-81 (Translated by Peter Green)
The last portion of that quote from Juvenal's Tenth Satire is often translated (and perhaps better-known) as "bread and circuses", the Latin for "games" being "circenses". One wonders what he would have made of the election-year circus unfolding in New Haven, Connecticut's State v. Hayes trial.

The facts of the case are, in a nutshell, that Hayes (with an accomplice) was responsible for the brutal killings of a mother and her two daughters; this is one of those few pre-conviction instances where we can dispense with the qualifier "allegedly" — Hayes has confessed and attempted to plead guilty to the charges. Why the trial, then? Simply this — the State of Connecticut is intent on executing Hayes for the crime and a defendant cannot plead guilty to a capital crime; hence, the greatest show on... well, in Connecticut.

With a sensational crime, an admission of guilt, and an upcoming election, one can understand the State's eagerness to undertake this costly trial. People are outraged by these heinous murders — more outraged than usual, perhaps, by the fact that the killings were of three white women in a prosperous suburb — and any jury would likely be in a killing mood. The defendant's confession makes conviction a certainty. The costs of the trial may be considerable, but that's money well-spent (and not their own money, after all) to demonstrate tough-on-crime credentials ahead of an election. What could possibly go wrong?

The wheels began to come off when, on just the second day of the trial and during the emotional testimony of the patriarch of the murdered family, a juror passed a note to the judge. Norm Pattis described the "unprecedented" happening:
When the juror was questioned, he offered the following: He did not think he'd be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state's case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: "What the Hell is this all about?" The sucking sound you heard early this afternoon was that of the prosecution's gonads retreating to a safe, dark place.

I've spent a lot of time in courtrooms and this ranks as one of the most amazing things I've ever heard.... This isn't exactly a case turning on an obscure point of law or difficult to conceive facts. A juror vetted after lengthy voir dire by both parties simply declared "no mas."

I have never seen a prosecution so effectively neutered and so quickly. It is as though the juror listened to the state, considered its star witness, and then decided the case wasn't worth the time it would take to decide it. How can the prosecution rebound from this unsubtle humiliation?
Jeff Gamso discussed the juror's extraordinary declaration and the judge's decision to dismiss him from the panel for expressing such doubts about the State's presentation:
Frankly, calling that "unprecedented" doesn't begin to capture how truly bizarre an event it was. Jurors don't do that.


[A] juror who's dissatisfied with the prosecution's case? Well, gee. Tough nuggies. Life's a bitch. But them's the breaks.

Not this time, though. This time the judge, the Honorable Blue, and over defense objections, dismissed the juror. Because, you know, it's an important case. The state wants to kill. We can't have a juror who thinks they're screwing it up, who might vote for life - or god help us, might vote not guilty.
Pattis was also critical of the judge's decision to dismiss this defense-leaning (or at least prosecution-doubting) juror and wrote that this incident exposed the flaws in Connecticut's time-and-resource-consuming voir dire process:
Judge Blue, concerned lest the man’s obvious discomfort and displeasure with the bungling efforts of the state to convict a man whose lawyer had already told jurors was guilty of murder, tossed the panelist over the state’s objection. Expect to hear more about that on appeal: It’s not enough to seat of jurors prepared to kill? We must now make sure that jurors think well of the state?


Let’s face it folks: Voir dire ailed in this instance. I did not see the juror, but I cannot escape the conclusion that he was a lingering nut job. If [defense counsel Thomas] Ullmann saw it, he banked on this fellow for a mistrial. But how did the state miss this?

The real answer is that neither side most likely realized the man was a smoldering volcano ready to erupt. Talking to him for upwards of an hour during voir dire didn’t detect it.


This maudlin show trial was unnecessary. The defendants offered to plead. But the state wants to kill them. We don’t permit men to submit to death. That would be obscene. So to make ourselves feel better we engage in a show trial and then make special rules to handle it.

Justice is mocked, but people feel good. Kumbaya, anyone?
Scott Greenfield commented on the circus sideshow this show trial has become:
There's no doubt that this is "unusual", to say the least, but for a judge to worry that a juror's concern might "contaminate" the other jurors is even more peculiar. The very word choice suggests that a juror who isn't favorably inclined toward the prosecution carries a "disease" that could "infect" others.


The duty of a juror is to weigh the testimony. If a juror is having difficulty understanding the significance or context of the testimony, thus making it difficult or impossible for him to weigh it, he's doing nothing more than alerting the court to a problem.

Rather, the proper reaction from the court is to inform the juror that this is an adversary process and the attorneys for the respective sides are entitled to present their evidence in whatever fashion they deem appropriate. That the prosecution's presentation makes it difficult, if not impossible, to understand what they heck they are doing isn't a problem for the court to resolve, but rather for the juror to take into account when called upon to decide the case. In other words, if they did a lousy job and failed to persuade you, for whatever reason, then speak to them by your verdict.

But not in Connecticut. Not in the trial where rich white folks were murdered. Get that heckling juror out of here so he doesn't spoil the plot line. The show must go on.
Gideon didn't absolve the prosecution or the judge of their portions of blame for the Hayes spectacle, but he wrote at length about the role the press has played in building and maintaining the public frenzy over this trial:
Sure, the crime is offensive. Sure the crime is heinous. I’ll accept whatever adjective you choose to throw at me. But there is an unmistakable stench of race and class politics emanating from that courthouse in New Haven. Out of curiosity, I called a source who is familiar with the goings on in that courthouse. “Are there any other trials going on currently?”, I asked. Sure enough, there is one other, just a floor below the Cheshire spectacle: State v. Brandon Bellamy.

By the information provided at that link, Mr. Bellamy is accused of two murders. That’s two victims, two families devastated, multiple lives ruined. Mr. Bellamy is also black. Perhaps his alleged victims are too, I don’t know. “How many reporters there?”, I followed up.


Not a single one. While the Cheshire trial needs a horde of media vans lining the streets and every able-bodied reporter in the State to cover it, just 20 feet below is a possible capital felony trial that no one gives a shit about.


Is it that difficult to understand that we have become the very monster we are condemning when we forsake the basic human values of dignity and compassion? That we are undermining the foundations of our system of justice when we want to “skip the trial and hang ‘em already”? Have we devolved to the point that intelligent discourse is left to fly-by-the-seat-of-your-pants networks like Twitter? Oh wait.

Mr. Hayes will be found guilty of several crimes and then 12 people will have the task of deciding whether to let him rot in jail for as long as he lives or to spill blood on all our hands. Some are licking their lips at that prospect. I don’t see the difference between them and Hayes.

Maybe it hasn’t occurred to all who are riveted to the trial, but what they’re witnessing is the slow murder of one man. All the reporting, the jeering, the condemning is nothing but spectatorship of the slow build up to the execution of a human being. Talk about macabre.

Murder is a terrible thing. It is not to be relished, enjoyed or anticipated. Let us not make a mockery of justice and of the value and dignity of all human lives.
As Juvenal knew, the deaths of condemned prisoners were a popular and frequent feature in Roman games, but we've come a long way since those barbaric days. Connecticuters, enjoy your circus, pass the bread around, and don't forget to vote in November.


A recent New York Times article about prisoners who were exonerated by DNA evidence after having confessed prompted many people to wonder why someone would confess to something he did not do. Mike Cernovich reminded us that interrogations are not necessarily focused on discovering truth but on establishing guilt; drawing on the legal blogosphere's memory — in this instance a 2007 post at Appellate Law and Practice — he noted that the FBI refuses to record interrogations for a reason:
This is straight from the United State Department of Justice's mouth: "Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."


You'll have to take DOJ's word that its interrogation techniques are "perfectly lawful." One wonders who inserted and acceptable. If the FBI doesn't want juries to know its interrogation methods, then obviously it's (allegedly) lawful interrogation techniques are not acceptable to normal Americans.

Which must mean that the FBI's interrogation techniques are acceptable to judges.

What does that say about judges?
Scott Greenfield suggested that we keep these facts in mind should we find ourselves considering a case as jurors:
As Mike notes, the government's position on videotaping makes two things perfectly clear: The techniques used to extract confessions would not be deemed acceptable to "lay persons," and are acceptable to judges. Our government, and in this context including our judiciary, has adopted an official policy to conceal from the public interrogations that the public would reject as unacceptable, perhaps unAmerican. Our judges, in the meantime, have decided that it's best to make sure that its decisions on the subject be kept from public view, lest Americans get an inkling what their government is doing.


Should we sit on a jury, it must be kept from our view. We couldn't handle the truth. We wouldn't find it acceptable. But our government, including our judges, has decided that it is both lawful and acceptable to them, even though we might be repulsed, offended, outraged and, to Garrett's point, unpersuaded that it produced a true confession.

This shouldn't be forgotten.
Norm Pattis recommended that when confronted with police questioning, we insist on recording such questioning and any responses we (however inadvisedly) offer:
If you want to short the circuits of an FBI agent, agree to talk to him, but only on the condition that you are permitted to tape record, or, even better yet, video record, your converation. Odds are, the agents will flush a deep red, stammer something about that not being possible, and then bluster with some veiled threat or another. The feds, like most law enforcement agencies, have a policy against electronic recording of statements. There is no good foundation for that policy in law or in fact.


Yesterday's New York Times reminded us yet again of why recordings are necessary: Innocent men and women are persuaded by police officers to confess to crimes they did not commit. It happens with disturbing regularity. Men and women spend decades behind bars for these crimes. And still there is no hue and cry among law men about the injustice of it all. The Times reports on a study by University of Virginia School of Law Professor David Garrett that demonstrates dozens of defendants have been exonerated of crimes they confessed to once the DNA evidence in their case was tested. Innocent men, I repeat, confess, and they do so after being left along with police officers who "tune them up" to tell the truth.

Left alone with defendants, and especially the mentally infirm, the young and the vulnerable, law men can easily contaminate an interview by providing inculpatory information to people being interrogated. At trial, these isolated facts are often dressed up as facts that only the perpetrator would know.


I say give lawmen choices. But let's protect the accused, too. If the police want to use a confession against a person, then require them to record it. There is no excuse to do otherwise.

In the meantime, don't be bullied. If the cops want to talk, press the record button on your telephone. If the cops flee and refuse to talk to you with a recording device on, save that tape. It might just save you from a lengthy prison term when Agent Feel Good has to explain to a jury why he was afraid of a simple recording of the means he uses to search for the truth.
When confronted by the police you're well-advised to say nothing, but it seems prudent that if one must say something, say as little as possible and require that the entire exchange be recorded. Recording is a necessary tool to counter police abuse elsewhere as well. Our old friend Juvenal [NOTE: A Round Tuit has been sponsored this by the Society for the Promotion of Juvenal Delinquency] asked, "Quis custodiet ipsos custodes?" — "Who guards the guards?" (or, for those of us who are fans of Alan Moore, "Who watches the Watchmen?")

Radley Balko has written many times about the value of recording police activity and about the measures police take (in most cases unlawfully) to prevent recording. This week, he noted that "the democratization of technology has made it easier than ever for just about anyone to pull out a camera and quickly document an encounter with police" and offered an overview:
With both Qik and UStream, you can delete your uploaded videos from your phone, which means that if your phone is confiscated before you can turn it off (or if you keep your phone unlocked), whoever took it can get into your account and erase your evidence.... [I]t would be far better if you had the option to make your videos deletable only once you've logged in from a computer. Another improvement would be the ability to "black out" the phone while it's taking video, so it isn't so obvious that you're recording.

UStream and Qik are not likely to add either function, since both are beneficial only for people who want to make surreptitious recordings. But how about an ACLU or NAACP app designed specifically for recording police? The NAACP's "All Alert" project encourages people to report incidents of police abuse through a toll-free phone number, text messages, or Twitter. But the process for registering a complaint is pretty cumbersome, and the program doesn't allow instant streaming and archiving.


The dizzying advancements in personal technology during the last decade have slipped a powerful government accountability tool into our pockets. But it happened mostly by accident. The technology was intended for other uses, and it still needs some fine tuning to work better as a protection against abuses of state power. It's hard to think of a more worthy project for a civil liberties group.
Quis custodiet ipsos custodes? We watch our guardians, or should.

That they need watching is another concern entirely.

Odds n Ends Shop

When I decided to post these Round Tuits weekly (or weakly, as the case may be), I knew that there would be many legal events for which worthy commentary spans from one week to the next. When that's occurred, I've tried to balance timeliness with completeness in deciding whether to let a topic "roll over" to the next week's round-up. Generally, I don't like to revisit the same issue in consecutive weeks, even if that means losing a worthy post now and again. Sometimes I guess wrong, as I possibly did in featuring the Vernor v. Autodesk decision in last week's thrilling edition. While there were several excellent early takes on the ruling, several others showed-up a bit later; thus, I'll depart from my general practice and feature those posts — gasp! — after talking about Vernor just last week. I hope that you'll find it in your hearts to forgive me.

Eric Goldman confessed that the Vernor case "makes my head hurt", but nonetheless persevered and identified a key consideration which may temper the decision's effects:
In considering the equities of the Vernor case, one fact stood out to me above the others: the architecture firm sold the supplanted software version after buying an upgrade at a discounted price. If Autodesk loses this case, then presumably it won't offer discounted upgrades in the future because each upgrade buyer can unleash the prior version into the secondary market. I would feel totally differently if the architecture firm had simply decided to stop using the software and wanted to liquidate the asset. Instead, the architecture firm got a windfall that Autodesk had clearly tried to prevent, which makes it harder to be sympathetic to Vernor as the downstream buyer. Unfortunately, the panel drafted a rule to preclude the architecture firm's windfall but failed to distinguish the more legitimate asset liquidation situation. In contrast, the equities in the [pending UMG v.] Augusto case point much more favorably towards a First Sale defense, so perhaps that case will effectively limit this ruling to the resale-after-upgrade situation.
In that same post, Venkat Balasubramani wrote:
[S]omewhat predictably, the reactions of people tended to fall towards extremes. My view is that anything less than a very limited ruling in Vernor's favor would have constituted a significant incursion into the contractual relationship.

One point which people picked up on is that the increase of software or content being made available in intangible form (without physical media, such as a CD) changes things. As more copyrighted material is made available in non-tangible (digital) form, I wonder if resale will become much less prevalent.


It's interesting that one criticism of the Ninth Circuit's decision is that it paves the way for other industries to start imposing restrictions on the resales of copyrighted material.... According to this argument, if software publishers are allowed to control the terms of redistribution via a license agreement, is the scary scenario of booksellers licensing copies of books next? But isn't this already the case? Companies such as Amazon certainly act as if they license the content to you.... This is also the position Amazon takes in its Kindle content terms, although interestingly, the Kindle terms allow for the perpetual right of possession....
The growing trend toward transferring copyrighted goods via downloads rather than on physical media was on Keith Lee's mind when he considered Vernor:
It’s a new and exciting area of intellectual property that is worth being aware of, not only for lawyers, but consumers in general. Corporations, studios, producers of content, and the like are going to be releasing products in digital versions in much larger quantities in the future – it’s what both consumers and producers want. Consumers want it for convenience, but producers increasingly want it for control. It’s foreseeable that within the next 10-15 years that any sort of physical medium for licensable intellectual property will cease to exist in major markets....
Mike Masnick sees and appreciates those trends, and the effects of legal restrictions on them, better than nearly anyone else; he's somewhat pessimistic about the post-Vernor digital world, not just in the emerging market for e-Books and software applications but also in the video game market, where content is still predominately distributed (and preferred by consumers) on physical media:
[The court] opens the door to effectively killing off the entire concept of the first sale doctrine, by highlighting the rather simple steps anyone needs to take to make sure any "sale" is really considered a "license," and thus removing the first sale rights. Basically, you just have to say there's a license and that "license" has to have a few rather simple things in it. You know all those stories about video game companies hating the used game market? Well, video game companies just got their "kill the secondary market free" card from the 9th Circuit.
Larry Downes is much more sanguine about the ruling and even suggested that Vernor went some way toward correcting an earlier mistake:
[T]he “ownership” regime was always an aberration, the result of an unfortunate need to rely on media to distribute code (until the Internet) coupled with a very bad decision back in 1976 to extend copyright protection to software in the first place.


So. You don’t own those copies of software that you thought you purchased. You just rent it from the vendor, on terms offered on a take-it-or-leave-it basis and subject to revision at will. All those disks sitting in all those cardboard albums sitting on a shelf in your office are really the property of Microsoft, Intuit, Activision, and Adobe. You don’t have to return them when the license expires, but you can’t transfer ownership of them to someone else because you don’t own them in the first place.

Well, so what? Most of those boxes are utterly useless within a very short period of time, which is why there never has been an especially robust market for used software. What real value is there to a copy of Windows 98, or last year’s TurboTax, or Photoshop Version 1.0?


In that sense, it never made any sense to “own” “copies” of software in the first place. That was only the distribution model for a short time, necessitated by an unfortunate technical limit of computer architecture that has nearly disappeared.


That’s why the Vendor decision, in the end, isn’t really all that revolutionary. It just acknowledges in law what has already happened in the market. We don’t buy software. We pay for a service—whether by the month, or by the user, or by looking at ads, or by the amount of processing or storage or whatever we do with the service—and regardless of whether the software that implements the service runs on our computer or someone else’s, or, for that matter, everyone else’s.
In mentioning Mark Bennett's Constitution Day edition of Blawg Review on Monday, I remarked that I'd planned to discuss Constitution Day here, but wouldn't because he did such an excellent job of it. I was only half joking. If you want to know how my "Constitution Day" section of A Round Tuit (45) would've read, just go reread Bennett's Blawg Review and imagine it being half as good. There you go.

If this post and his Blawg Review haven't satisfied your craving for legal blogging round-ups this week, there are certainly others. No, this won't become a review of the reviews (or, as Juvenal might say, a watcher of the blawg-watchers), but it's always worth a look at the latest Law School Roundup, hosted this past week at the Thanks, But No Thanks blog and other weeks at Evan Schaeffer's Beyond the Underground blog. Most days, Colin O'Keefe gathers the best posts from the LexBlog network.

In addition to those, and to the daily round-ups at the Above the Law site in their Morning Docket and Non-Sequiturs posts, I'd like to recommend a couple more. The Marquette University Law School Faculty Blog posts a Best of the Blogs feature; in the most recent one, Edward Fallone highlighted posts about "trivial but interesting" topics like comic books, football, and video games.

Charon QC posted a review gathering "a few" (he's a modest sort — it's actually more than two dozen) UK law blogs, including John Bolch's Family Lore blog, John Flood's Random Academic Thoughts blog, Carl Gardner's Head of Legal blog, the "Familoo"-written Pink Tape blog, and David Allen Green's Jack of Kent blog. From the latter two, I'll mention a couple of particularly-notable posts from the past week.

Familoo advised that in Britain's family courts, it's not only claimants who need protection from abusers; their lawyers could use some help now and again as well:
Its not just the applicant for a non-molestation order who is harassed. Lawyers and other professionals are often subject to abuse, harassment and other upsetting conduct. It’s a feature of the job, and you learn to deal with it, but it can be highly stressful.


Particularly I think in family cases, things can take a different turn and can go beyond threatening or abusive behaviour at or in court. Some examples that other colleagues have experienced include heavy breathing or abusive phonecalls, abusive emails or correspondence, following a female colleague whilst out alone or otherwise approaching them to air a grievance whilst out in public. Some are on hate or hit lists drawn up by fathers rights groups or other campaigning bodies.


Some of us are subject to malicious, repeated or vexatious complaints to chambers, to the Bar Standards Board, to the Ministry of Justice or whoever will listen. Some complaints are legitimate and grounded, others are not. By the time we have been in the job for a decade or so most of us have been subject to some form of complaint, even those will the highest standards of professional conduct, client care and the highest levels of judgment and skill.
David Allen Green discussed the pending appeal of Paul Chambers' criminal conviction. Briefly, exasperated by problems earlier this year at a regional airport, Chambers tweeted "Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!" His comment was brought to the attention of airport authorities, who dismissed it as non-threatening but duly passed it along to police. The police arrested Chambers despite clear evidence that the comment was not intended (or interpreted by airport authorities) as a threat and passed him on to the Crown Prosecution Service. CPS realized that they lacked evidence to convict Chambers of perpetrating a bomb hoax, so they strained Section 127 of the 2003 Communications Act (covering "menacing" communications) to charge Chambers. He was convicted of the offense and appealed; that appeal will be heard at the end of this week. Green, who has covered Chambers' case from the start and has advised him during his appeal, explained why his case is significant for all Britons:
In one way, this is not a significant case at all: just another appeal from the Magistrates' Court by just another defendant, and indeed the formal penalty - a fine and costs totalling £1000 - is not anywhere near a custodial sentence, but is instead at the lower end of what the English criminal justice system can impose.

However, it is one of the most significant cases of our times, and it is significant on three levels.

First, there is the horrifying lack of common sense or proportion shown by any of those who dealt with the matter.


The second significant feature of this case is how the law in question was used by the CPS.

It may seem a technical legal point; but the importance of this aspect should not be underestimated. The implications of the CPS position are highly concerning.

The prosecutors of a section 127 offence need to show that an appropriate action occurred (the actus reus, in legal jargon) and that the defendant had a wrongful intention in doing this action (mens rea).

Paul's tweet was not menacing - there is no actus reus. And he had no intention of sending a menacing communication - so there was also no mens rea.


The CPS regard section 127 as a "strict liability" offence, which means they do not believe they have to provide any evidence at all of intention before they decide to prosecute someone.


The third significant aspect is the human context.

Prosecutions and criminal records ruin lives.


Prosecutions and criminal records should not be light affairs; they fundamentally affect the lives of the defendants, their families, and friends.

A criminal record has never improved a person's life; a criminal record has never directly benefited society as a whole.

Of course they are unavoidable for those who commit crimes; but they should not be imposed casually, and certainly not as casually as it has been imposed in this case.
Charon characterized the Chambers prosecution as further evidence of a decade-long erosion of civil liberties in the UK and a "terrifying tale of modern Britain":
The Rule of Law is an essential concept in any progressive and civilised society – but it must be a Rule of Law which can be respected.


I hope the appeal is successful – not just for the sake of Paul Chambers, but for the sake of our Rule of Law. We can’t respect a Rule of Law which is based on such ludicrous decisions to prosecute – and the government, the law, the police, the authorities, are going to need a lot of respect from those subject to it in the difficult years ahead.

We must repeal bad laws, we must as a country use powers wisely and not vindictively or indiscriminately… or here, absurdly.
In a demonstration of support for Chambers, Green has suggested that on Friday morning UK time, we retweet his tweet containing a well-known line from Sir John Betjeman's poem "Slough": "Come, friendly bombs, and fall on Slough! It isn't fit for humans now." Sir John reportedly regretted writing those famous-but-non-threatening words (we can be certain that Chambers regrets his) and, if he were alive today, might not appreciate seeing them as a trending topic on Twitter come Friday morning. With apologies to him, let's do it anyhow. After all, Betjeman died in 1984; Chambers and millions of other Brits are living in 1984 right now.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., Barry Pittard, moviegoings, and Paris Odds n Ends Thrift Store.

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